[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 8.  Elections and Election Campaigns]
[A. Apportionment; Voting Districts]
[Â§ 2. Census and Apportionment; Numerical Allocation of Representatives]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 839-848]
 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
                   A. APPORTIONMENT; VOTING DISTRICTS
 
Sec. 2. Census and Apportionment; Numerical Allocation of 
    Representatives

    Article I, section 2, clause 3 of the U.S. Constitution requires 
that an enumeration of the people be made every 10 years in order that 
seats in the House may be apportioned among the states according to the 
number of persons counted in each state. As originally adopted, this 
provision made certain distinctions between free persons, slaves, and 
``Indians not taxed.'' (10) The 14th amendment, ratified 
after the emancipation of slaves,(11) altered that provision

[[Page 840]]

by mandating the counting of the ``whole number'' of persons in each 
state and by directing that a denial of voting rights proportionately 
reduces a state's basis of representation.
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10. The original constitutional provision provided that three-fifths of 
        the persons not freed be counted to compute a state's basis of 
        representation. Enumeration was excluded, both in that 
        provision and in the 14th amendment, for ``Indians not taxed.'' 
        Indians are now included in the enumeration since they are 
        subject to federal taxation (see Sec. 2.3, infra).
11. The Emancipation Proclamation was issued on Jan. 1, 1863, and, 
        although of no binding force, was sanctioned by the 
        ratification of the 13th amendment in December of 1865. The 
        14th amendment was ratified in July of 1868.
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    Congressional apportionment legislation adopted pursuant to these 
constitutional provisions allocates a certain number of seats in the 
House to each state, and also fixes the maximum numerical membership of 
the House.(12)
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12. For a historical analysis of the mathematical methods which have 
        been used to apportion seats in the House based on census 
        results, see Sec. 1, supra.
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    The census has been taken decennially since 1790,(13) 
and has been administered since 1889 by the Bureau of the Census, a 
subdivision of the Department of Commerce.(14) The data 
gathered through the census has been broadened to include information 
other than population statistics,(15) since reports prepared 
by the Bureau of the Census aid the Congress in the informed 
performance of its legislative function.(16)

[[Page 841]]

Proposals related to the census fall under the jurisdiction of the 
Committee on Post Office and Civil Service.(17)
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13. Under 41 USC Sec. 141, as amended by Pub. L. No. 94-521, 90 Stat. 
        2459, a mid-decade census is to be taken in 1985 and every 10 
        years thereafter, but information gained therein may not be 
        used for apportionment or congressional districting.
14. For the establishment power, and duties of the Bureau of the Census 
        and the Director of the Census, see 13 USCA Sec. Sec. 1 et seq. 
        For the scope of the census director's authority and the 
        constitutionality of Congress' delegation of power to him, see 
        the annotations to title 13, USCA. For the reasonableness of 
        criteria used by the Census Bureau in computing the population 
        of respective states, see Borough of Bethel Park v Stans, 449 
        F2d 575 (3d Cir. 1971).
15. The Constitution does not prohibit the gathering of statistics 
        other than those affecting population, United States v 
        Moriarty, 106 F 886 (Cir. Ct. S.D. N.Y. 1901), and the fact 
        that many personal questions may be asked in order to provide 
        statistical reports on housing, labor, health, and welfare 
        matters (see 13 USCA Sec. Sec. 141-146) does not render census 
        questions an unconstitutional invasion of a person's right to 
        privacy. United States v Little, 321 F Supp 388 (D. Del. 1971).
16. ``While Sec. 2 [article I, clause 3] expressly provides for an 
        enumeration of persons, Congress has repeatedly directed an 
        enumeration not only of the freed persons in the states, but 
        also those in the territories, and has required all persons 
        over 18 years of age to answer an ever-lengthening list of 
        inquiries concerning their personal and economic affairs. This 
        extended scope of the census has received the implied approval 
        of the Supreme Court [Legal Tender Cases, 79 U.S. (12 Wall.) 
        457, 536 (1870)]; it is one of the methods whereby the national 
        legislature exercises its inherent power to obtain the 
        information necessary for intelligent legislative action.'' 
        Constitution of the United States of America: Analysis and 
        Interpretation, S. Doc. No. 92-82, 92d Cong. 2d Sess., p. 106.
17. Rule XI clause (16)(a), House Rules and Manual Sec. 711 (1973). The 
        former Committee on the Census was consolidated into this 
        committee by the Legislative Reorganization Act of 1946, 60 
        Stat. 812, Jan. 2, 1947.
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    Although the 14th amendment provides that when the right to vote in 
certain elections is denied to any male inhabitants of a state, the 
basis of representation shall be proportionately 
reduced,(18) a reduction in the representation of a state in 
the House for denial of voting rights has never been 
made.(19) Unsuccessful attempts have been made by Members of 
the House (20) and by citizens to require that in taking the 
census the Census Bureau determine the number of disenfranchised 
persons in each state and make the reduction provided for in the 14th 
amendment.(1)
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18. Proportionate reduction of representation for denial of right to 
        vote, under the 14th amendment, Sec. 2, refers to the right to 
        vote as established by the laws and constitution of the state. 
        Lassiter v Northampton County Bd. of Elections, 360 U.S. 45 
        (1959); McPherson v Blacker, 146 U.S. 39 (1892); Daly v 
        Madison, 378 Ill. 357, 38 N.E. 2d 160 (1941).
            A collateral attack was made on the composition of the 
        House, for alleged violation of the 14th amendment, in Dennis v 
        United States, 171 F2d 986 (D.C. Cir. 1948), aff'd, 339 U.S. 
        162 (1950), where a defendant in a congressional contempt 
        proceeding unsuccessfully claimed that committee action was 
        invalid, one Member being an ``interloper'' rather than a 
        Representative since his state was entitled to four instead of 
        seven Representatives pursuant to the 14th amendment.
19. Congress has provided by statute that in case of apparent 
        disenfranchisement by a particular state, certain steps be 
        taken to regulate federal elections in such state. See 42 USCA 
        Sec. 1971(e), and the discussion thereof in South Carolina v 
        Katzenbach, 383 U.S. 301 (1966).
20. See Sec. Sec. 2.7, 2.8, infra.
            For an analysis of legislative attempts to enforce the 14th 
        amendment, Sec. 2, since it was ratified, see Zuckerman, A 
        Consideration of the History and Present Status of Section 2 of 
        the Fourteenth Amendment, 30 Fordham L. Rev. 93 (1961).
 1. Some appellate courts have held that enforcement of the provision 
        is within Congress' discretion and presents a nonjustifiable 
        political question. Saunders v Wilkins, 152 F2d 235 (4th Cir. 
        1945), cert. denied, 328 U.S. 870 (1946); Lampkin v Connor, 239 
        F Supp 757 (D.D.C. 1965), aff'd, 360 F2d 505 (D.C. Cir. 1966).
            Omission from a census form of a question relating to voter 
        disenfranchisement does not render the taking of a census 
        unconstitutional notwithstanding the provisions of the 14th 
        amendment. United States v Sharrow, 309 F2d 77 (2d Cir. 1962), 
        cert. denied, 372 U.S. 949, rehearing denied 372 U.S. 982 
        (1963).
            A New York resident had no standing to seek an injunction 
        against the transmittal to the President by the Census Director 
        of the 1970 census on grounds that the 14th amendment reduction 
        had not been made, where the plaintiff failed to show that he 
        had been injured thereby. Sharrow v Brown, 447 F2d 94 (2d Cir. 
        1971).

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[[Page 842]]

    Results of the census are transmitted to Congress by the President, 
who is directed by law to compute the prospective allocation of 
Representatives to states pursuant to the mathematical method appointed 
by Congress.(2) Since 1941, the method of ``equal 
proportions'' has been used to determine reapportionment 
questions.(3)
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 2. The power of Congress to direct how the enumeration shall be made 
        and transmitted is derived from U. S. Const. art. I, Sec. 2, 
        clause 3: ``The actual enumeration shall be made within three 
        years after the first meeting of the Congress of the United 
        States, and within every subsequent term of 10 years, in such 
        manner as they shall by law direct.''
            The transmission of the census results to Congress is 
        provided for by 2 USC Sec. 2a.
            Under the act of June 18, 1929, 46 Stat. 26, the President 
        was required to ascertain the number of Representatives to 
        which each state would be entitled under both the methods of 
        equal proportions and of major fractions. For a description of 
        those methods, see Sec. 1, supra.
 3. See Sec. 2.6, infra.
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     Until 1920, at the time of the 16th census, congressional 
reapportionment legislation was adopted based on each new 
enumeration.(4) Following the 1920 census, however, no 
legislative action was taken, and Congress determined in 1926 that the 
constitutional provision providing for reapportionment following a 
census was directory rather than mandatory.(5) In 1929, 
Congress enacted into law a procedure whereby apportionment following 
and based upon a census would automatically take effect if Congress 
chose not to act.(6) Under

[[Page 843]]

this procedure, reapportionment is based on the method of equal 
proportions, and the Clerk of the House notifies state officials of the 
number of seats in the House to which the state is 
entitled.(7)
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 4. Although art. I, Sec. 2, clause 3 directs that Representatives be 
        apportioned among the states according to their respective 
        numbers, and expressly authorizes Congress to provide for an 
        enumeration every 10 years by law, the power to allocate seats 
        in the House to the states after the enumeration is not 
        expressly stated within the clause but has always been acted 
        upon by Congress as ``irresistibly flowing from the duty'' 
        directed by the Constitution. Prigg v Pennsylvania, 41 U.S. (16 
        Peters) 619 (1842).
 5. See 1.2, supra.
 6. Act of June 18, 1929, 46 Stat. 26.
 7. 2 USC Sec. 2a (the act of 1929 as amended by the act of Apr. 25, 
        1940, 54 Stat. 162 and the act of Nov. 15, 1941, 55 Stat. 761).
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    Reapportionment legislation has no privileged status under the 
Constitution and cannot interrupt the regular rules of proceeding of 
the House. Reapportionment legislation has been considered in the 
Committee of the Whole,(8) and proposals on apportionment 
are within the jurisdiction of the Committee on the 
Judiciary.(9)
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 8. See Sec. 2.5, infra.
 9. Rule XI clause 14(b), House Rules and Manual Sec. 707 (1973).
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    If a reapportionment of seats causes an increase or decrease in the 
number of seats to which a state is entitled, the state must redistrict 
itself into single-member districts consistent with constitutional 
requirements.(10)
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10. See 2 USCA Sec. Sec. 2a and 2c. For redistricting in general, see 
        Sec. 3, infra.
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    Maximum numerical membership of the House was fixed at 435 by the 
act of 1911.(11) There was a temporary increase to 437 
Members between 1959 and 1963 when two new states were 
added,(12) but the membership has returned to 435.
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11. The act of Aug. 8, 1911, 37 Stat. 13 provided, under the 13th 
        census, for 433 Members, with the stipulation that if the 
        Territories of Arizona and New Mexico should become states they 
        should have one Representative each. Arizona and New Mexico 
        became states in 1912; see the Presidential proclamation set 
        out in 37 Stat. 1723.
12. Alaska and Hawaii were admitted as states and granted one 
        Representative each. See 2 USCA Sec. 2a.
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    A state has no claim to seats additional to those allotted by 
Congress, and attempts by states to send to Congress more than its 
allotted number of Representatives have been 
unsuccessful.(13)
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13. See 1 Hinds' Precedents Sec. Sec. 314-319. For a discussion of the 
        supremacy of congressional authority over allocation of seats 
        in the House to the several states see 1, supra.
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                         Collateral References
The Decennial Population Census and Congressional Apportionment, H. 
    Rept. No. 91-1314, 91st Cong. 2d Sess., Subcommittee on Census and 
    Statistics, Committee on Post Office and Civil Service.
Van Alstyne, The Fourteenth Amendment, the ``Right'' to Vote, and the 
    Understanding of the Thirty-Ninth Congress, 1965 Sup. Ct. Rev. 33 
    (1965).
Zuckerman, A Consideration of the History and Present Status of Section 
    2 of the Fourteenth Amendment, 30 Fordham L. Rev. 93 (1961).

[[Page 844]]

Taking the Census

Sec. 2.1 When providing for the taking of the census and submission of 
    results to Congress, Congress may also provide for the taking of 
    other statistics.(14)
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14. See generally 13 USC Sec. Sec. 1 et seq.
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    On June 4, 1929, when the House was considering in the Committee of 
the Whole a bill dealing with the taking of the census and the 
submission of the results to Congress, Chairman Carl R. Chindblom, of 
Illinois, ruled that amendments to take additional statistics, such as 
to take a census of aliens,(15) and to take a census of 
qualified voters whose right to vote has been denied or 
abridged,(16) were germane.
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15. 71 Cong. Rec. 2338, 2339, 71st Cong. 1st Sess.
16. Id. at p. 2348.
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Sec. 2.2 The President transmits to the Congress the results of the 
    decennial census and the proposed reapportionment of 
    Representatives among the states.

    On Jan. 2, 1961,(17) the President sent to the Congress 
a message relating to the census of 1960 and to a reapportionment of 
House seats:
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17. 107 Cong. Rec. 649, 87th Cong. 1st Sess., Jan. 12, 1961. See also 
        97 Cong. Rec. 114, 82d Cong. 1st Sess., Jan. 9, 1951; and 87 
        Cong. Rec. 70, 77th Cong. 1st Sess., Jan. 8, 1941.

    To the Congress of the United States:

        Pursuant to the provisions of section 22(a) of the act of June 
    18, 1929, as amended (2 U.S.C. 2a), I transmit herewith a statement 
    prepared by the Director of the Census, Department of Commerce, 
    showing (1) the whole number of persons in each State, as 
    ascertained by the Eighteenth Decennial Census of the population, 
    and (2) the number of representatives to which each State would be 
    entitled under an apportionment of the existing number of 
    representatives by the method of equal proportions.

                                         Dwight D. Eisenhower,
                                                The White House,
                                                 January 10, 1961.

Sec. 2.3 Since 1940, all Indians have been included in the census 
    enumeration, with the acquiescence of Congress, because they are 
    subject to federal taxation.

    On Jan. 8, 1941, the Presidential message transmitting the results 
of the 1940 census and the projected allocation of seats in the House 
to the states was laid before the House.(18)
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18. 87 Cong. Rec. 70, 77th Cong. 1st Sess.
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    The last paragraph of the President's message read as follows:

        The Director of the Census has included all Indians in the 
    tabulation of

[[Page 845]]

    total population since the Supreme Court has held that all Indians 
    are now subject to Federal taxation (Superintendent v Commissioner, 
    295 U.S. 418). The effect of this upon apportionment of 
    representatives, however, appears to be for determination by the 
    Congress, as concluded in the Attorney General's opinion of 
    November 28, 1940, to the Secretary of Commerce, a copy of which is 
    annexed hereto.(1)
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 1. The U.S. Constitution, amendment 14, Sec. 2 provides that all 
        persons be counted in the census except ``Indians not taxed.''
            The Attorney General has stated that whatever 
        ``construction the Congress will now give to the phrase 
        `Indians not taxed' is a question for it to decide, and action 
        taken by it with respect thereto will be final, subject only to 
        review by the courts in proper cases brought before them.'' 87 
        Cong. Rec. 71, 77th Cong. 1st Sess.
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    The President's message was ordered referred and printed, and no 
challenge or objection was made to the inclusion of Indians within the 
enumeration.(2)
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 2. See also 97 Cong. Rec. 114, 82d Cong. 1st Sess., Jan. 9, 1951 
        (Indians included in 1950 census).
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Consideration of Apportionment Legislation

Sec. 2.4 The House has determined that a motion to consider 
    reapportionment legislation following the taking of a census is not 
    privileged under the Constitution.

    On Apr. 8, 1926, Mr. Henry E. Barbour, of California, rose ``to 
present a privileged question under the Constitution of the United 
States.'' The purpose of the motion was to discharge the Committee on 
the Census from further consideration of a bill for the apportionment 
of Representatives in Congress among the several states under the 14th 
census and to provide that the House proceed to the immediate 
consideration thereof. Mr. Bertrand H. Snell, of New York, made a point 
of order against the motion, contending that it was not privileged 
under House rules or procedures. He stated that there was ``no 
mandatory provision in the Constitution itself which provides for 
immediate apportionments; and, furthermore, if we did grant there was 
such a provision, that there is no mandatory provision in the 
Constitution which provides that it shall be done contrary to the rules 
and procedure of the House.''
    Mr. Snell analyzed a long line of precedents which had held that 
motions to consider reapportionment legislation were privileged under 
the Constitution but stated that those decisions should be overruled, 
since the requirement in the Constitution that the House reapportion 
Representatives following a census was directory and not 
mandatory.(3)
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 3. 67 Cong. Rec. 7138-48, 69th Cong. 1st Sess.
            Reference was also made to a report of the Committee on 
        Elections No. 3, 68th Cong. 1st Sess., Mar. 29, 1924, 
        indicating that a person could not claim a seat in the House 
        that was not allotted to the state by the House where 
        reapportionment following a census had not been made, since 
        reapportionment following the taking of a census is a customary 
        practice but not a constitutional requirement (see 6 Cannon's 
        Precedents Sec. 54).

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[[Page 846]]

    After lengthy discussion, Speaker Nicholas Longworth, of Ohio, 
stated that in his opinion the prior precedents, according 
constitutional privilege to reapportionment legislation, should be 
overruled. He declined to rule on the question, however, stating that 
the question should be submitted to the House. The House then voted 
that the consideration of the bill called up by Mr. Barbour's motion 
was not in order as a question of constitutional privilege.

Sec. 2.5 Bills pertaining to the apportionment of seats to the several 
    states have been considered in the Committee of the 
    Whole.(4)
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 4. 71 Cong. Rec. 2258, 2259, 71st Cong. 1st Sess., June 3, 1929; 111 
        Cong. Rec. 5080, 5084, 89th Cong. 1st Sess., Mar. 16, 1965; 87 
        Cong. Rec. 1071-89, 77th Cong. 1st Sess., Feb. 17 1941; and 86 
        Cong. Rec. 4373, 76th Cong. 3d Sess., Apr. 11, 1940.
            See also 6 Cannon's Precedents Sec. Sec. 51, 52.
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Method of ``Equal Proportions''

Sec. 2.6 In 1941, Congress determined that seats for Representatives 
    should thereafter be allotted to the states under the method of 
    ``equal proportions.''

    Following the census of 1940, Congress determined, based on reports 
of the House Census Committee incorporating recommendations of 
prominent scientists, that seats for Representatives should thereafter 
be allotted to the states under the method of equal 
proportions.(5) If Congress passes no reapportionment 
legislation following a census, the equal proportion method is 
automatically used and the Clerk notifies the state of the number of 
seats to which it is entitled in the House.(6)
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 5. Act of Nov. 15, 1941, 55 Stat. 761, codified as 2 USC Sec. 2a. For 
        detailed discussion of the mechanics of the method of equal 
        proportions, see Sec. 1, supra (summary).
            In 1929, Congress provided that in submitting the results 
        of the decennial census to Congress, the President should 
        direct to be ascertained the number of Representatives to which 
        each state would be entitled under both the method of major 
        fractions and the method of equal proportions. Act of June 18, 
        1929, Ch. 28, Sec. 22, 46 Stat. 26.
 6. 2 USCA Sec. 2a(b).
            For House debate on H.R. 2665, on Feb. 17 and 18, 1941, to 
        adopt the method of equal proportions for apportionment of 
        Members to the states, see 87 Cong. Rec. 1071-89, 1123-30, 77th 
        Cong. 1st Sess. The method of equal proportions had been 
        preferred by the National Academy of Sciences (at p. 1072), and 
        extensive hearings were held by the Committee on the Census in 
        1940 on comparison between the various mathematical methods of 
        reapportionment and the degree to which they produced equal 
        representation in the House of Representatives.
            By adoption of the equal proportions method retroactive to 
        the 1940 census, the apportionment in 1941 caused the State of 
        Arkansas to lose one seat and the State of Michigan to gain one 
        seat.

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[[Page 847]]

Reduction of Representation for Denial of Voting Rights

Sec. 2.7 To a bill dealing with the date for the periodic apportionment 
    of Representatives in Congress, an amendment providing that, in 
    submitting the statement to Congress and making the apportionment, 
    the reduction provided in section 2 of the 14th Amendment to the 
    Constitution shall be made, was held not germane.

    On Apr. 11, 1940, the House was considering, in the Committee of 
the Whole, S. 2505 to amend the 1929 apportionment bill in order to 
change the date of subsequent apportionments. The change in date was 
considered necessary in light of the 20th amendment to the 
Constitution, which had changed the convening date of Congress and the 
Presidential inauguration day.(7)
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 7. 86 Cong. Rec. 4373, 76th Cong. 3d Sess. The bill was passed and 
        became law (act of Apr. 25, 1940, Ch. 152, Sec. Sec.  1, 2, 54 
        Stat. 162); see 2 USC Sec.  2a, as amended.
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    Mr. John C. Schafer, of Wisconsin, offered an amendment directing 
that in submitting the census to Congress, the President reduce the 
basis of representation for states where required by the 14th amendment 
of the U.S. Constitution.(8)
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 8. The 14th amendment, Sec. 2, provides that where the right to vote 
        is denied by a state, the basis of representation in the state 
        shall be reduced in the proportion which the number of male 
        citizens denied the vote shall bear to the whole number of such 
        citizens in the state.
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    Chairman Marvin Jones, of Texas, ruled that the amendment was not 
germane to the pending bill, since the bill dealt only with the 
mechanics of the apportionment and not with the census itself. He cited 
a past precedent where a similar amendment, providing for a 
proportionate reduction in the number of Representa

[[Page 848]]

tives allotted to a state pursuant to the 14th amendment, was held not 
germane to reapportionment legislation.(9)
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 9. See also 8 Cannon's Precedents Sec. 2996 for a ruling that, to a 
        bill providing for reapportionment of Representatives in 
        Congress, an amendment authorizing redistricting of states in 
        accord with such apportionment was not germane.
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Sec. 2.8 To a civil rights bill, an amendment establishing a 
    ``Commission on Voting'' to report the number of citizens in each 
    state denied the right to vote and to calculate a new apportionment 
    of Representatives on the basis of such findings, was ruled out as 
    not germane.

    On Feb. 4, 1964, while the House was considering title I of the 
Civil Rights Bill of 1963, an amendment was offered to establish a 
Commission on Voting to report the number of citizens in each state 
denied the right to vote and to calculate a new apportionment of 
Representatives on the basis of such findings.(10)
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10. 110 Cong. Rec. 1899, 88th Cong. 2d Sess.
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    Chairman Eugene J. Keogh, of New York, ruled that the amendment was 
not germane, citing the precedent of July 19, 1956, wherein Chairman 
Aime J. Forand, of Rhode Island, held not germane a similar amendment 
to a similar bill.(11)
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11. For unsuccessful proposals to create a joint congressional 
        committee to implement the 14th amendment of the U.S. 
        Constitution by providing for reduction in representation for 
        denial of voting rights, see S. 2709, 85th Cong. 1st Sess. 
        (1957) and S. 1084, 86th Cong. 1st Sess. (1959).
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